The author of this communication (initial letter dated 28 Novemuc4 1979 and further letters dated 28 and 31 May, 23 June, 7 July and 3 OCtober 1980, 9 February, 27 May and 22 July 1981) is Violeta Setelich, a Uruguayan national residing in France. She submitted the communication on behalf of her husband, Raul Sendic Antonaccio, a 54 year old Uruguayan citizen, detained in Uruguay.
The author stated in her submission on 28 November 1979 that her husband had been the main founder of the Movimiento de Liberacion Nacional (MLN-Tupamaros). She commented that the MLN(T) had been a political movement - not a terrorist one - aimed at establishing a better social system through the radical transformation of socio-economic structures and recours~ to armed struggle. She further stated that, on 7 August 1970, after sev~n years of clandestine activity, her husband was arrested by the Uruguayan police1 that on 6 September 1971 he escaped from Punta Carretas prison together with 105 other political detainees1 that he was re-arrested on 1 September 1972 and taken, seriously wounded, to a military hospita11 and that, after having been kidn~pped by a military group, he finally appeared in Military Detention Establishment No. 1 (Libertad prison).
The author further stated that, between June and September 1973, eight women and nine men, including her husband, were transferred by the army to unknown places of detention, and that they were informed that they had become "hostages" and would be executed if their organization, MLN(T), took any action. She ~dded that, in -114-
The author des~ribed five places of detention where her husband was kept between 1973 and 1976, and stated that in all of them he was sUbjected to mistreatment (solitary confinement, lack of food and harassment), while in one of them, as a result of a severe beating by the guards, he developed a hernia. She mentions that, in September 1976, he was transferred to the barracks of Ingenieros in the city of Paso de los Toros.
The author declared that, beginning in February 1978, her husband was once again subjected to inhuman treatment and torture: for three months, he was made to do the "plant6n" (stand upright with his eyes blindfolded) throughout the day; he was only able to rest and sleep for a few hours at a time; he was beaten and given insufficient food and he was not allowed to receive visits. In May 1978, he received his first visit after this three months' sanction and his state of health was alarming.
At the end of August 1978, the authorities officially stated that, because of the danger he represented, her husband was not qetained in Libertad Prison, but at Paso de los Toros. The author maintained that the fact that her husband was held as a hostage and the cruel and discriminatory treatment to which he was subjected constituted flagrant violations of both national and international law, particularly the Geneva Conventions of 1949.
The author stressed that her husband's situation had not changed with the coming into force of the International Covenant on Civil and Political Rights and the Optional Protocol on 23 March 1976. She requested the Human Rights Committee to take appropriate action with a view to securing her husband's right to submit a communication himself.
The author further alleged that her husband had needed an operation for his hernia since 1976; that, despite a medical order to perform such an operation, the military authorities had refused to take him to a hospital, and that his state of health continued to deteriorate. (Because of his hernia, he could take only liquids and was unable to walk without help; he also suffered from heart disease.) She feared for his life and even thought that it had been decided to kill him slowly, notwithstanding the official abolition of the death penalty in Uruguay in 1976. She therefore requested the Human Rights Committee to apply rule 86 of its provisional rules of procedure in order to avoid irreparable damage to his health.
The author stated that her husband had been denied all jUdicial guarantees. She further stated that, since December 1975, it had been compulsory for all cases relating to political offences to be heard by military courts. and that her husband's trial, which was still pending, would, therefore, be before such a body. -115- ~ trial and of the right to appeal, that defence lawyers were systematically harassed ~ the military authoriti~s and that her husband had not been allowed to choose his own counsel. She maintained that all domestic remedies had been exhausted.
She also stated that, at the time of writing (28 November 1979), she was unaware of her husband's whereabouts. She requested the Human Rights Committee to obtain information from the State party about his place of detention and conditions of imprisonment.
The author claimed that the following~provisionsof the International Covenant on Civil and Political Rights had been violated by the Uruguayan authorities: articles 2, 6~ 7, 10 and 14.
On 26 March 1980, the Human Rights Committee decided to trafismit the communication to the State party, under rule 91 of the provisional rules of procedure, requesting information and observations relevant to the question of admissibility of the communication. The Committee also requested the State party to furnish information on the state of health of Raul Sendic Antonaccio, the medical treatmen~ given to him and his precise place of detention.
By a note dated 16 June 1980, the State party contested the admissibility of the communication on the ground that the same matter had been submitted to the Inter-American Commission on Human Rights (IACHR) as case No. 2937. In this connexion the Committee ascertained from the Secretariat of IACHR that the case referred to was sUbmittGd by a third party and opened before IACHR on 26 April 1978. The State party did no~ furnish any information concerning Raul Sendic's state of health, the medical treatment given to him or his whereabouts.
In her submission dated 23 June 1980, the author, commenting on the State party's submission, stated that she had never submitted her husband's case to the IACHR. She further stated that it had become known, thanks to strong international pressure on the military authorities, that her husband was detained in the Regimiento "Pablo Galarza" in the department of Durazno. She alleged that the State party had refrained from giving any information on her husband's state of health because he was kept on an inadequate diet in an underground cell with no fresh air or sunlight and his contacts with the outside world were restricted to a monthly visit that lasted 30 minutes and took place in the presence of armed guards.
In a further submission dated 7 J~ly 1980, Violeta Setelich identified the author of the communication to IACHR concerning its case No. 2937 and enclosed a copy of his letter, dated 8 June 1980, addressed to the Executive Secretary of IACHR, requesting that consideration of case,No. 2937 concerning Raul Sendic should be discontinued before that body, so as to remove any procedural uncertainties concerning the competence of the Human Rights Committee to consider the present communication under the Optional Protocol.
In the circumstances, the Committee found that it was not precluded by article 5(2) (a) of the Optional Protocol from considering the communication. The
On 25 July 1980, the Human Rights Committee therefore decided: (a) That the communication was admissible, (b) That, in accordance with article 4 (2) of the Optional Protocol, the State party should be requested to submit to the Committee, within six months of the date of the transmittal to it of the Committee's decision, written explanations or statements clarifying the matter and the measures, if any, that it had taken to remedy the situation; (c) That the State party should be requested to furnish the Committee with information on the present state of health of Raul Sendic Antonaccio, the medical treatment given to him and his exact whereabouts; (d) That the State party should be infor~ed that the written explanations or statement submitted by it under article 4 (2) of the Optional Protocol must relate primarily to the substance of the matter under consideration. The Committee stressed that, in order to discharge its responsibilities, it required specific responses to the allegations which had been made by the author of the communication, and the State party's explanations of its actions. The State party was requested, in that connection, to enclose copies of any court orders or decisions of relevance to the matter under consideration.
In a letter dated 3 OCtober 1980, the author argued that her husband had the right to be informed of the Committee's decision of 25 July 1980, declaring the communication admissible, and that he should be given copies of the relevant documents and afforded an opportunity to supplement them as he saw fit.
On 24 OCtober 1980, the Human Rights Committee: Noting that the author of the comrJunication, in her submission of 28 November 1979, had expressed grave concern as to her husband's state of health and the fact that his whereabouts were kept secret by the Government of Uruguay, Taking into account the fact that its previous requests for information about the present situation of Raul Senaic Antonaccio had gone unheeded, Noting further the letter dated 3 October 1980 from the author of the communication, Decided,
That the State party should be reminded of the decisions of 26 March and 25 July 1980 in which the Human Rights Committee requested information about the state of health of Rau1 Sendic Antonaccio, the medical treatment given to him and his exact whereabouts;
That the State party should be urged to provide the information sought without any further delay; -117-
In further letters dated 9 February, 27 May and 22 July 1981, the author restated her deep concern about her husband's state of health. She reiterated that after soldiers had struck him in the lower abdomen with gun butts at Colonial barracks in mid-1974, her husband had developed an inguinal hernia and that there was a risk that the her.nia might become strangulated. She stated that Sendic's relatives had repea~edly requested that he should be operated on because of his extremely poor stat~ of health, but to no avail. ~
She added that her husband's conditions ef detention were slightly better at the Regimiento Pablo Galarza No. 2, since he was allowed to go out to the open air for one hour a day. She stressed, however, that he should be transferred to the Libertad Prison, where all other political prisoners were held.
COncerning her husband's legal situation, she added the following information: (i) In July 1980, her husband was sentenced to the maximum penalty under the Uruguayan Penal Code: 30 years' imprisonment and 15 years of special security measures. He had not been informed of the charges against him before the trial, or allowed to present witnesses and the hearing had been held in camera and in his absence. He had been denied the right of defence as he had never been able to contact the lawyer assigned to him, Mr. Almicar Perrea. (ii) In September 1980 and in April and May 1981, the authorities announced that her husband's sentence was to be reviewed by the Supreme Military Tribunal~ but this has not yet occurred. (iii) Though Sendic's relatives had appointed Maitre Cheron to be his lawyer, Maitre Cheron was denied in September 1980 and in January 1981 the right to examine Sendic's dossier and to visit him,
The time-limit for the state party's submission under article 4(2) of the Optional Protocol expired on 27 February 1981. To date, no such submission has been received from the State party.
On 21 August 1981, the State party submitted the following comments on the Committee's decision of 24 October 1980 (see para. 11 above): "The Committee's decision of 24 October 1980 adopted at its eleventh session on the case in question exceeds its authority. The competence granted to the Committee on Human Rights by the.Optional Protocol to the International COvenant on Civil and Political Rights is contained in article 5 (4) which states: 'The Committee shall forward its views to the State party concerned and to the individual.' The scope of this rule is quite clearly defined. The Committee has authority only to send its observations to the State party concerned. "On the contrary, in the present decision, the Committee had arrogated to itself competence which exceeds its powers. -118-
The Human Rights Committee, having examined the present communication in the light of all the information made available to it by the parties as provided in article 5 (1) of. the Optional Protocol, hereby decides, in the absence of comments by the State party, to base its views on the following facts as set out by the author:
Events prior to the entry into force of the Covenant: Raul Sendic Antonaccio, a main founder of the Movimiento de Liberacion ~acional (MLN) - Tupamaros, was arrested in Uruguay on 7 August 1970. On 6 September 1971, he escaped from prison, and on 1 September lS72 he was re-arrested after having been seriously wounded. Since 1973 he has been considered as a "hof'tagell, meaning that he is liable to be killed at the first sign of action by his organization, MLN (T). Between 1973 and 1976, he was held in five penal institutions and subjected in all of them to mistreatment (solitary confinement, lack of food and harassment). In one of them, in 1974, as a result of a severe beating by the guards, he developed a hernia.
Events subsequent to the entry into force of the Covenant: In September 1976, he was transferred to the barracks of Ingenieros in the city of Paso de los Toros. There, from February to May 1978, or for the space of three months, he was subjected to torture (lpl ant6nes", beatings, lack of food). On 28 November 1979 (date of the author's initial communication), his whereabouts were unknown. He is now detained in the Regimiento-Pablo Galarza No. 2, Department of Durazno, in an underground cell. His present state of health is very poor (because of his hernia, he can take only liquids and is unable to walk without help) and he is not being given the medical attention it requires. In July 1980, he was sentenced to 30 years' imprisonment plus 15 years of special security measures. He was not informed of the charges brought against him. He was never able to contact the lawyer assigned to him, Mr. Almicar Perrea. His trial was held in camera and in his absence and he was not allowed to present witnesses in support of his case. In september 1980 and in Apdl and May 1981, it was publicly announced that his sentence was to be review~d by the Supreme Military Tribunal. -119-
The Human Rights Committee cannot accept the State party's contention that it exceeded its mandate when in its decision of 24 October 1980, it requested the State party to affort to Raul Sendic Antonaccio the opportunity to communicate directly with the Committee. The Committee rejects the State party's argument that a victim's right to contact the committee directly is invalid in the case of persons imprisoned in Uruguay. If gover&ments had the right to erect obstacles to contacts between victims and the Committee, the procedure established by the Optional Protocol would, -in many instances, be rendered meaningless. It is a prerequisite for the effective application of the Optional Protocol that detainees should be able to communicate directly with the Committee. The contention that the International Covenant and the Protocol apply only to States, as subjects of international law, and that, in consequence, these instruments are not directly applicable to individuals is devoid of legal foundation in cases where a State has recognized the competence of the Committee to receive and consider communications from individuals under the Optional Protocol. That being so, denying individuals who are victims of an alleged violation their rights to bring the matter before the Committee is tantamount to denying the mandatory nature of the Optional Protocol.
The Human Rights Committee notes with deep concern that the state party has failed to fulfill its obligations under article 4 (2) of the Optional Protocol and has completely ignored the Committee's repeated requests for information concerning Raul Sendic's state of hea:th, the medical treatment given to him and his exact whereabouts. The Committee is unable to fulfill the task conferred upon it by the Optional Protocol if States parties do not provide it with all the information relevant to the formation of the views referred to in article 5(4). Knowledge of the state of health of the person concerned is essential to the evaluation of an allegation of torture or ill-treatment.
The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and ?olitical Rights, is of the view that the facts as found by the Committee, in so far as they continued or occurred after 23 March 1976 (the date on which the Covenant and the Optional Protocol entered into force for Oruguay', disclose violations of the International Covenant on Civil and Political Rights, particularly: of article 7 and article 10 (1) because Raul Sendic is held in solitary confinement in an underground cell, was subjected to torture for three months in 1978 and is being denied the medical treatment his condition requires; of article 9 (3) because his right to trial within reasonable time has not been respected; of article 14 (3) (a) because he was not promptly informed of the charges against him; -120- of article 14 (3) (d) because he was unable to attend the trial at first instance; of article 14 (3) (e) because he was denied the opportunity to obtain the attendance and examination of witnesses on his behalf.
The Committee, accordingly, is of the view that the State party is under an obligation to take immediate stepB to ensure strict observance of the provisions of the Covenant and to provide effective measures to the victim, and in particular to extend Raul Sen .c treatment laid down for detained persons in articles 7 and 10 of the Covenant and to give him a fresh trial with all the procedural guarantees prescribed by article 14 of the Covenant. The State party must also ensure that Raul Sendic receives promptly all necessary medical care. \ -121-